Abstract

The matter regarding the culpa in contrahendo of the public administration and in particular
the enforceability of the rules about precontractual liability – contained in the civil code –
to contractual activity brought about by the public administration has aroused interest by the
science of law and the jurisprudence both administrative and civil.
This topic has been widely studied indeed. The different surveys have considered and
developed the various problems concerning first the abstract admissibility of the
precontractual liability of the public administration, secondly the application peculiarities of
the culpa in contrahendo because of the public nature of the administration.
Before dealing with these issues, I will make some comments about the civil discipline of
the precontractual liability, first considering the notion and the rule principles of the
institution in question.
The notion of good faith in objective sense, which – as it is common knowledge – is the
conceptual and applicatory requirement of the culpa in contrahendo, gets a special
importance for this research.
More precisely, starting from the importance of the concept of good faith as developed by
the civil science of law and jurisprudence I will consider its significance in administrative
law while dealing with the well-known issue of the application of the good faith principle to
the legal paradigms of public law, which are characterized by the exertion of discretionary
power by the administration.
Concerning this subject, I will consider some of the most authoritative doctrinal directions
that have proposed – also considering the jurisprudential development due to the necessity
of protecting the good faith of interested parties within public relations between citizens and
the public administration, also when the administration acts in the exertion of its
discretionary powers – of alternative dogmatic reconstructions for recognizing the
subjection of the administration to loyalty and correctness rules, which are specifications of
the general principle of the objective good faith. In particular, I will analyse the theories which state that the effectiveness of the institution
de quo in public relations is based on the impartiality principle ex art. 97 Cost. (Allegretti),
the tutelage of the confidence aroused within private parties by a previous provision or
behavior of the public administration (Merusi), the tutelage of the favourable judicial
situations of private parties produced by a previous decision of the administration
(Mantero).
After a few theoretical and historiographical notes regarding the admissibility of the civil
liability of the public administration, in the first part of this research I will relate
systematically and refute the arguments that the jurisprudence and part of the science of law
have been supporting until the first half of the last century for denying the admissibility of a
precontractual liability of the public administration: the public nature of the person, the
discretionary nature of the administrative acting during negotiation of the contract, the
discipline of controls that would exclude ex sé the admissibility of a precontractual tort.
After supposing the abstract admissibility of a precontractual liability of the public
administration and recognizing the importance of the objective good faith principle also
within administrative law, I will analyse the admissibility of the culpa in contrahendo of the
public administration in the public phase of the public evidence, proposing the admissibility
of a tort from provision activity (illecito da attività provvedimentale), also considering the
reconstructive theories that I will criticize: the theory of the contractual administrative
nature of the provisions that compose the so-called public phase of the public evidence, and
the theory of the admissibility of the precontractual liability as liability “for non-fulfilment
of correctness duties” (responsabilità “per inadempimento degli obblighi di correttezza”) or
liability “from qualified administrative contact” (responsabilità “da contatto amministrativo
qualificato”).